C., EMERALD L., MTR. OF ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1375
CAF 11-02266
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
IN THE MATTER OF EMERALD L.C.
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CHAUTAUQUA COUNTY DEPARTMENT OF SOCIAL MEMORANDUM AND ORDER
SERVICES, PETITIONER-RESPONDENT;
DAVID C., JR., RESPONDENT-APPELLANT.
(APPEAL NO. 1.)
PATRICIA M. MCGRATH, LOCKPORT, FOR RESPONDENT-APPELLANT.
BARBARA L. WIDRIG, MAYVILLE, FOR PETITIONER-RESPONDENT.
ROBERT W. SCHNIZLER, ATTORNEY FOR THE CHILD, JAMESTOWN, FOR EMERALD
L.C.
Appeal from an order of the Family Court, Chautauqua County
(Judith S. Claire, J.), entered October 20, 2011 in a proceeding
pursuant to Social Services Law § 384-b. The order, among other
things, adjudged that respondent David C., Jr. permanently neglected
the subject child, Emerald L.C. and transferred custody and
guardianship of the subject child to petitioner.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Petitioner commenced these proceedings pursuant to
Social Services Law § 384-b seeking to terminate the parental rights
of respondent father with respect to five of his children based on
permanent neglect. In these consolidated appeals, the father appeals
from orders that terminated his parental rights with respect to those
children. We note at the outset that the father’s contention that
Family Court failed to make the requisite finding that petitioner
exercised diligent efforts to reunite him with the subject children is
belied by the record.
The father further contends that petitioner failed to exercise
diligent efforts to reunite him with the subject children. Although
the father raises that contention for the first time on appeal and
thus failed to preserve it for our review (see generally Matter of
Christian A., 6 AD3d 1177, 1177-1178, lv denied 3 NY3d 604), we
nevertheless address it because “proof by the child-care agency that
it has satisfied its statutory obligation is a threshold consideration
and a necessary prerequisite to any determination of permanent
neglect” (Matter of Sheila G., 61 NY2d 368, 385-386). We conclude,
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CAF 11-02266
however, that the father’s contention lacks merit. The court properly
concluded that there was copious evidence that petitioner exercised
diligent efforts to reunite the family, but the father “refused to
acknowledge and treat the underlying sexual abuse problem that led to
the child[ren]’s placement in foster care” (Matter of Gloria Melanie
S., 47 AD3d 438, 438). “Clearly, petitioner was not required to
forego requiring [the father’s] participation in a sex offender
program or to formulate an alternative plan to accommodate his refusal
to admit his role in the abuse” (Matter of James X., 37 AD3d 1003,
1006).
Finally, inasmuch as the father did not request a suspended
judgment, he failed to preserve for our review his further contention
that the court should have granted that relief (see Matter of Atreyu
G. [Jana M.], 91 AD3d 1342, 1343, lv denied 19 NY3d 801).
Entered: December 21, 2012 Frances E. Cafarell
Clerk of the Court